Excerpt: - .....absent, will cause decomposition. he was not able to give cause of decomposition found in the milk sample received on october 14, 1970 at the central food laboratory, calcutta. in view of the fact that because of the defect in adding the formalin of the proper strength or quality or of proper quantity or because of both these factors the sample which had been handed over by the food inspector to the accused on july 15, 1970 after purchasing the milk from the accused got decomposed and thus because of the conduct of the prosecution viz., want of proper care in adding the preservative of the proper strength and quantity to the sample handed over to the accused, valuable right given to the accused under section 13(2) has been denied to the accused. in the light of the above judgment of.....

Judgment:

B.J. Divan, J.

1. The appellant herein is the original accused in Criminal Case No. 271 of 1970 in the Court of the learned City Magistrate, 6th Court, Ahmedabad. The accused was prosecuted in respect of alleged adulteration of cow's milk which was being sold at his shop and he was found guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to R. I. for one month and to pay a fine of Rs. 1,000/- in default R. I. for 9 months.

2. The facts of the prosecution case are that at about 6-45 p. m. on July 15, 1970, the Food Inspector of the Ahmedabad Municipal Corporation went to the shop of the accused at Madhupura. The accused held the licence to deal in milk and at the time when the Food Inspector, Sanatkumar, went to the shop, sale of milk was going on. He purchased 700 mis. of cow's milk from the accused and paid the price of 84 paise as demanded by the accused. Then he informed the accused that he was the Food Inspector and had purchased this milk for analysis by the Public Analyst. Equal quantities of milk were put in three clean dry glass bottles and 19 drops of formalin were added to each one of these three bottles. Then the bottles were corked and sealed and the Pancha had signed on each seal on the bottles. Then slips were tied and seals were affixed. It was alleged by the prosecution that according to the Public Analyst, the milk as per sample was deficient in fat and was not upto the standard required of cow's milk. On August 1, 1970, the complaint in this case was filed against the accused for commission of the offence under the Act for selling adulterated cow's milk. On October 1, 1970, the accused in response to the summons served upon him appeared in the Court and that seems to have been the first hearing of the case and on that date, as shown by the Rojnama, he ap-pUed for sending the sample, which was left with him, to the Director of Central Food Laboratory at Calcutta and that application was granted on condition that he paid Rs. 50/- for sending the milk. The sample was accordingly sent to Calcutta on October 4, 1970. The sample was analysed by the Director of Central Food Laboratory at Calcutta. He found that the sample was highly decomposed and was unfit for analysis and he sent the report accordingly to the Court of the learned City Magistrate. On these facts prosecution was proceeded against the accused and ultimately the learned trial Magistrate found the accused guilty and sentenced him as mentioned above. The present appeal has been filed by the original accused against the order of conviction and sentence passed by the learned City Magistrate.

3. Under Section 13(2) of the Act, after the institution of a prosecution undeu the Act, the accused-vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and may then despatch the sample under its own seal to the Director of the Central Food Laboratory, who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis. Under Sub-section (3) of Section 13 of the Act, the certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the public analyst under Sub-section (1) of Section 13; and under the proviso to Sub-section (5) of Section 13, it has been provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.

4. The provisions of Section 13(2) and other sub-sections of Section 13 came up for consideration before the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 . The Supreme Court there laid down that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right, has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case on the facts contained therein. The Supreme Court further observed that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise his right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.

5. In the instant case, the Food Inspector has stated in his evidence that he had added 19 drops of formalin to each of the three bottles in which one-third of the quantity of the milk of cow purchased from the accused was poured. The Public Analyst Laxmansing, P. W. 4, Ex. 14 has stated that a sample to which formalin has been added according to the appropriate proportion will last nearly for one year and the quantity of farmalin in the milk which he examined in this case was sufficient in proportion. The Public Analyst has also stated in his evidence that he was not able to say that because of formalin, either being less in quantity or totally absent, will cause decomposition. He was not able to give cause of decomposition found in the milk sample received on October 14, 1970 at the Central Food Laboratory, Calcutta. In view of the fact that because of the defect in adding the formalin of the proper strength or quality or of proper quantity or because of both these factors the sample which had been handed over by the Food Inspector to the accused on July 15, 1970 after purchasing the milk from the accused got decomposed and thus because of the conduct of the prosecution viz., want of proper care in adding the preservative of the proper strength and quantity to the sample handed over to the accused, valuable right given to the accused under Section 13(2) has been denied to the accused. In the light of the above judgment of the Supreme Court, it is obvious that if this valuable right is denied to him because of deliberate conduct on the part of the prosecution, the conviction of the accused cannot be upheld. In this case it is true that there was no positive act but act of omission on the part of the Food Inspector to see that the preservative of proper quantity and quality was added to the sample which had been handed over to the accused on July 15, 1970 at the time of the purchase.

6. Under these circumstances, it is obvious that, with respect to him, the learned Magistrate was in error when he found merely on the strength of the Public Analyst's Report that the prosecution had established its case against the accused. Therefore, I allow this appeal and set aside the order of conviction and sentence passed by the learned City Magistrate against the accused. Bail-bonds of the appellant-accused are cancelled. Fine, if paid, to be refunded to him.